Jun. 23, 2011

Written by

Joan Biskupic, USA Today

WASHINGTON — The Supreme Court struck down a Vermont law Thursday that prevented pharmacies from selling prescription information for drug marketing purposes, by a 6-3 vote in a closely watched data-mining dispute.

The justices said the law violated the First Amendment by targeting certain information and particular speakers, specifically pharmaceutical manufacturers and so-called detailers who visit physicians’ offices and engage in marketing on behalf of drug companies.

In an opinion by Justice Anthony Kennedy, the court said such pharmaceutical marketing deserved heightened free speech protection that could not be overcome by Vermont’s arguments about medical privacy or marketing that may lead to more costly prescription choices.

“The state may not burden the speech of others in order to tilt public debate in a preferred direction,“ Kennedy wrote in an opinion that emphasized the value of commercial materials, particularly “in the fields of medicine and public health, where information can save lives.”

Dissenting justices said the majority put too high a regard on commercial speech and denied legitimate state concerns regarding public health and escalating medical costs.

“We are, of course, disappointed with this result,” said Vermont Attorney General William Sorrell, whose office argued the case. “We knew going in that this Supreme Court has frequently sided with large corporations. Our challenge now will be to continue to work to protect medical privacy and reduce health care costs without violating the Supreme Court’s ruling. This is a step back, but not the end of the story.”

Sen. Patrick Leahy, D-Vt., criticized the decision as “another example of this Court using the First Amendment as a tool to bolster the rights of big business at the expense of individual Americans.”

The case centered on prescription records data collectors buy from pharmacists, then sell to drug manufacturers. The data, collected according to federal rules and regulation, do not include patient names but cover information (such as the physician’s name and address and strength of drugs prescribed) to allow pharmaceutical companies to track the illnesses physicians treat and their prescribing patterns.

Defending a law against a challenge by IMS Health and other data collectors, Vermont said drug company sales representatives use the information to target physicians for new and expensive brand-name drugs that are not in the interests of patients or the state.

“While Vermont’s stated policy goals may be proper,“ Kennedy wrote, the law “does not advance them in a permissible way. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the fear that people would make bad decisions if given truthful information cannot justify content-based burdens on speech.”

The 2007 Vermont law, similar to measures in Maine and New Hampshire, grew out of an effort by the Vermont Medical Society. Its members urged the Legislature to pass it after they became aware that prescription data mining was used by drug company sales reps in their pitches to physicians.

Thirty-five states, along with the Justice Department, joined Vermont’s defense of the law.

Kennedy noted that although the marketers have an economic motive, their information is nonetheless vital, relevant and in some cases welcomed by physicians.

Kennedy spurned Vermont’s concerns about the privacy of patient information, noting that the law allowed the data to be distributed for purposes other than marketing — for example, research.

“The capacity of technology to find and publish personal information, including records required by the government, presents serious and unresolved issues with respect to personal privacy,“ Kennedy wrote. “In considering how to protect those interests, however, the state cannot engage in content-based discrimination to advance its own side of the debate.”

Writing for the trio, Breyer said the majority wrongly subjected the provision to heightened First Amendment protection. He stressed that the information covered by Vermont’s statute was commercial in nature and existed only because of government regulation of pharmacy records.

“The speech-related consequences here are indirect, incidental and entirely commercial,“ Breyer warned, adding that the court may have opened “a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices.”